Oct 24, 2014

Bedbug Educational Material

At each new move-in, all landlords should provide their new tenants with bedbug educational material. According to ARS 33-1319, this is one of their responsibilities as a landlord. If the property develops an infestation after the tenant moves in, it is almost always the tenant's responsibility to pay for it to be taken care of, but if the landlord doesn't do his part (i.e., provide tenants with educational material), he could be found liable for costs.




Oct 20, 2014

Appeal Eviction in Arizona

Appealing an eviction judgment in Arizona is very expensive, time consuming, and cumbersome. So much so that I've never seen a tenant successfully appeal an eviction judgment. However, Arizona law provides tenants the opportunity to appeal a forcible detainer (eviction) judgment. There are two main stages to the appeal process. The first stage of the appeal process begins in the Justice Court; the second stage takes place in the Arizona Superior Court. All of the steps must be completed or the appeal will be dismissed.

STAGE ONE - THE TRIAL COURT- NOTICE OF APPEAL

In order to appeal an eviction judgment a notice of appeal MUST be filed within 5 calendar days from the date of the judgment.

Notice of Appeal Fee

A $75 appeal fee is paid at the time the Notice is filed. This fee includes the cost of a copy of the audio recorded proceedings, a certification of the appeal record, and the transmittal of the record on appeal to the Superior Court.

Cost Bond

On or before the deadline to appeal the cost bond must be paid. Currently the cost bond is set at $250. The purpose of this bond is to cover court costs incurred by the Appellee, (landlord) in defending the appeal.

Supersedeas Bond(s): One and Two

The purpose of the first supersedeas bond is to prevent enforcement of the judgment. Payment of this bond will prevent collection actions on the dollar amount awarded from the judgment, i.e. the ability to garnish wages.

Supersedeas Bond Part Two:

The second supersedeas bond will prevent any eviction proceeding resulting from an eviction action judgment.

It is not necessary for a tenant to post either of the two types of supersedeas bonds. But they must post one or the other to prevent enforcement of the eviction judgment.

How much are the bonds?

The amount of the bond is the total amount of the judgment ordered by the justice court, including court costs, attorney's fees, damages, etc. The purpose of this bond is to stay collection proceedings on the money judgment awarded. The stay becomes effective when the bond is posted.

The second supersedeas bond is used to stay the eviction proceedings enforced by a Writ of Restitution. The amount of the bond is the amount of rent due from the date of the judgment to the next periodic rental due date, plus court costs and attorney fees ordered in the judgment. To stay the eviction proceedings a supersedeas bond must be posted before the Writ of Restitution is enforced. The stay becomes active once the bond is paid, but cannot be retroactive if the Writ has already been executed.

Rent Payment:

In addition to paying all the necessary fees and bonds, the tenant must continue to pay their rent during the appeal process. All rent payments must be paid to the justice court on or before the rental due date, pending the appeal process.  If the rent is not timely received, the plaintiff may pursue a Writ of Restitution for execution of the judgment for possession.

THE WRITTEN APPEAL MEMORANDUM

The Appellant's memorandum is a written explanation of why the justice court ruling was legally wrong. This is where the tenant can provide a legal explanation for why the justice court's ruling was wrong. The memorandum should cite specific law and how it was inappropriately applied to the facts of the relevant case. The tenant's memorandum must be filed within 60 calendar days of the deadline to file the Notice of Appeal.

The landlord then has 30 days to file a response to the tenant's memorandum.

Once both sides have filed their respective memorandum we must wait for further instruction from the Superior Court.

STAGE TWO - THE SUPERIOR COURT

About 60 days after the tenant files the memorandum, he will receive notice from the Superior Court instructing him to pay the Superior Court filing fee.

After all of these steps have been completed, the parties will receive a written ruling from the Superior Court. The Superior Court can affirm the trial court, overrule the trial court, modify some of the trial court's decision, or, if the record is not clear order a new trial in the Superior Court.

If the final outcome of the case is that the original ruling stands, or if the tenant's appeal is dismissed for any reason, the court may use the bonds, deposit or payments made to satisfy the obligation under the original judgment.

Oct 8, 2014

Bedbugs: Who is Responsible?

                In the world of rental properties, “bedbugs” is a dirty word and a landlord’s worst nightmare. Aside from the physical difficulties bedbugs pose, there are legal ramifications to deal with if one doesn’t take the necessary precautions. Therefore, every landlord should know his/her responsibilities regarding bedbugs.

                A.R.S. § 33-1319  states in part, landlords should be providing each tenant with “bedbug educational material” prior to their tenant moving in. This should material should cover, without limitation, preventative measures, behaviors that increase the risk of bedbugs, and a description of the appearance of bedbugs. Also, a landlord should not move a tenant into a house if he knows that house has a current infestation.

                On the other hand, a tenant is responsible for notifying a landlord in writing as soon as he or she becomes aware of the presence of bedbugs. A tenant should not move materials already infested with bedbugs into his house or apartment.

                Let’s say there are no bedbugs when a tenant moves in, but three months later there is an infestation. Who is responsible to pay for all the fees associated with getting rid of them? Almost always the answer is: the tenant.

               Following the above guidelines may protect you as a landlord from a lawsuit in the unfortunate event that your property contracts a bedbug infestation. If you have more questions about how to protect yourself as a landlord, call (480)246-8033 to set up a free consultation with an attorney.

Oct 7, 2014

10-Day Notice to Tenant

Section 33-1368(A) of the Arizona Residential Landlord and Tenant Act gives guidance to Arizona landlords whose tenants have materially breached their rental agreement.

Section 33-1368(A) states in part; "...if there is a material noncompliance by the tenant with the rental agreement...the landlord may deliver a written notice to the tenant specifying the acts and omissions constituting the breach and that the rental agreement will terminate upon a date not less than ten days after receipt of the notice if the breach is not remedied in ten days."

33-1368(A) goes on to say; "...if the breach is remediable by repair or the payment of damages or otherwise, and the tenant adequately remedies the breach before the date specified in the notice, the rental agreement will not terminate."

So, for example, if your lease agreement provides for two adults to live in your property but you find that 22 adults are living in the property then this is the notice you will want to send them.

The 10-day Notice would basically say, "hey, we know you've got 22 people living in the house and we're giving you 10 days to get rid of the extra 20 tenants."

If your tenants do get rid of their 20 roommates during the following ten days then you are not able to evict them because they rectified the situation within the allotted time.

However, if your tenants remove the 20 extra roommates and they return after the 10 day notice expires then we can sent them a second 10 day notice and there is no way they can rectify the situation at that point.